Last Tuesday, the Columbia Federalist Society and the Columbia OutLaws cosponsored a debate between Professor Marci Hamilton of UPenn and Sherif Girgis of Princeton about the First Amendment implications of the pending Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission.
As I waited in line for the auditorium doors to open, I listened to the other students babbling, awestruck that someone as well educated as Mr. Girgis—a Rhodes Scholar and Yale Law School graduate—could hold such deplorable views. “I just can’t believe anyone still thinks this way,” one young lady exclaimed, apparently having never met a Christian or traveled outside of the Northeastern United States. And then, after a pause: “But honestly, 10 years ago, most people would’ve agreed with him. I mean, I guess Obergefell really changed everything.”
Their minds, it seemed, were already made up. They were comfortable standing on the so-called “right side of history” and were only there to point and laugh at the conservative Christian—a hateful, nightmarish creature long thought to have been eradicated. The saddest part: none of what I overheard surprised me. Sure, it was a FedSoc event, but at Columbia, the “free exchange of ideas” is an empty platitude. Dogma, instead, is triumphant.
The debate, however, proceeded amicably, with Sherif presenting his case first. His argument was strong, yet simple and intuitive. If, as he claimed, “a custom wedding cake is a form of artistic expression” carrying a specific message, and Colorado’s Anti-Discrimination Act does not pass the “strict scrutiny” test, then it ought to be protected by the First Amendment. Citing such landmark cases as Texas v. Johnson and Snyder v. Phelps, he demonstrated that the Constitution protects even the most condemnable speech. While nobody wants to be told that a part of their identity is evil, hurtful speech does not justify government coercion.
Professor Hamilton, on the other hand, made rather lazy, piecemeal remarks. She wandered from public accommodations to copyright law, with the crux of her “argument” depending on a desperate extension of the “first sale doctrine,” which provides that the purchaser of a copyrighted work can do as they please with that particular copy. Now I’m no legal scholar, but it seems to me that such an absurd invocation only becomes meaningful if the Court agrees with Professor Hamilton that a wedding cake is “nothing more than a product.”
If, as she claimed, a wedding cake carries no specific message and is purely utilitarian, then of course it would be ludicrous for the baker to demand that it not be used as part of the “marriage” celebration. The couple, not the artist, chooses the message; but by asking for a custom cake, the artist is essentially asked to be complicit in expressing the couple’s message—that a “gay marriage” is good and sacred and worth celebrating. Somehow, with such contradictions in mind, Hamilton continued to deny the obvious artistic expressive elements of a wedding cake.
What then? Does the Court become the arbiter of what is and is not art? I certainly hope not. After all, most normal people can’t agree on a definition of “art.” I, for one, don’t think there’s ever been a wedding cake decorated that wasn’t objectively more beautiful than Jackson Pollock’s No. 5, 1948, which somehow raked in 140 million dollars at auction. Do Pollock’s paint splatters count as artistic expression, while Jack Phillips’ cakes are counted mere products, goods to be consumed? Again, I certainly hope not, for in that case, we risk all art becoming subject to a dangerous legal-aesthetic standard, to be defined by the government. Art would become entirely political and transform slowly, ubiquitously into propaganda. The Court might then decide that particular paintings or monuments do not qualify as art, and are therefore not protected by the First Amendment. Do progressives, who make up most of the contemporary art world, want to cede this ground in exchange for the possibility of government censorship, or do they just want to eat their cake and have it too?
Such questions, it seemed, were as far away from Hamilton’s mind as could be. She had her own slippery slope defenses and, of course, the coveted “race card” up her sleeve. Sure enough, during her rebuttal, she suggested that if the Court decides in favor of Masterpiece Cakeshop, they will give retailers and other businesses the authority to control what’s done with a good or service after the point of sale. And, without fail, she likened Jack Phillips’ noble and principled conduct to Jim Crow era discrimination, a comparison that makes absolutely no sense if one considers the fact that Mr. Phillips offered to serve the couple anything from his shop; he only refused to design a custom cake for a celebration he could not endorse.
Sherif, meanwhile, continued to calmly press the relevant point: the Constitution does not allow the government to compel anyone to say, write, create, or otherwise express something that they do not agree with, least of all something that violates their sincerely held religious beliefs. It’s that simple. Whether it’s a wedding cake, an irreverent sculpture, or an ISO propaganda poster, everyone has a right to say what they want, but nobody has the right to force others to say it for them.